The Lift Line
“In a system obsessed with hierarchy and protocol, our state legislatures want our lordships at the top, and the law professors report to them as vice-chancellors.”
Why This Editorial Matters for Your Exam
Article 124(3) is a classic Prelims provision and a sharp Mains angle on judicial appointments. The author, Prabhash Ranjan, a professor and vice-dean at Jindal Global Law School, uses Justice Ujjal Bhuyan’s recent remark to widen the lens: the problem is not one unused clause but how India treats legal scholarship.
GS Paper 2: Structure, organisation and functioning of the judiciary; appointments to constitutional posts; statutory and non-statutory bodies (Law Commission).
| Concept | Meaning | Why it is testable |
|---|---|---|
| Article 124(3) | Qualifications for a Supreme Court judge, including “distinguished jurist” | Three routes, one never used |
| Article 217(2) | Qualifications for a High Court judge | No jurist route for High Courts |
| Collegium | CJI and senior judges who recommend appointments | Its preferences shape the pool |
| Law Commission of India | A non-statutory body set up by executive order for a fixed term | Usually chaired by retired judges |
| International Law Commission | UN body that codifies international law | India’s nominees are usually government lawyers |
Background and Context
The provision. Article 124(3) makes a citizen eligible if he or she: (a) has been a judge of a High Court (or two or more in succession) for at least five years; or (b) has been an advocate of a High Court (or two or more) for at least ten years; or (c) is, in the opinion of the President, a distinguished jurist. The Constitution does not define “distinguished jurist”; the author notes a consensus that it refers to law teachers.
The Constituent Assembly. Members such as H.V. Kamath and M. Ananthasayanam Ayyangar debated the clause; the example of Felix Frankfurter, a Harvard law professor appointed to the US Supreme Court, influenced the intent to widen the pool.
Direct appointments from the Bar have become common since S.M. Sikri was elevated in 1964, but the jurist route has never been used. The author names eminent academics, among them P.K. Tripathi, Upendra Baxi, M.P. Singh, G. Mohan Gopal and B.S. Chimni, whose scholarship is cited globally.
The Analysis
1. A symptom, not the disease. Justice Bhuyan’s regret is well placed, but the author argues the deeper problem is that law academics “have rarely been accorded the respect they deserve”.
2. The hierarchy built into law schools. India has more than two dozen National Law Universities, each created by a State law. Almost all make the CJI or a High Court Chief Justice the chancellor, with a law professor as vice-chancellor. Many central universities, by contrast, have professors as chancellors, appointed by the President as Visitor, and State universities routinely have Governors. The signal, the author says, is that judges sit above professors, so a collegium would be averse to making a professor its equal.
3. The executive’s neglect. No law professor has chaired the Law Commission, which has mostly been led by retired judges, and consultation on new laws usually means law firms or a few Delhi think tanks.
4. The international pattern. Of the four Indians who have served on the International Court of Justice, two were members of the Indian Civil Service under British rule and two were retired Supreme Court judges who seldom dealt with international law. Nominations to the International Law Commission have mostly been government lawyers.
5. A gatekeeping compact. The author sees an unwritten understanding between judiciary and executive that key legal posts are theirs, unlike practice in many liberal democracies, and doubts that change is likely.
The precision that earns marks. The “distinguished jurist” route exists only for the Supreme Court (Article 124(3)(c)). Article 217(2) for High Court judges requires ten years in judicial office or ten years as an advocate, with no jurist category.
Data and Institutions Vault
Prelims-grade facts:
Article 124(3), Supreme Court:
- Route (a): High Court judge for 5 years.
- Route (b): advocate of a High Court for 10 years.
- Route (c): a distinguished jurist in the opinion of the President; never used.
Related provisions and bodies:
- Article 217(2): High Court judges need 10 years in judicial office or as an advocate; no jurist route.
- The Law Commission of India is constituted by executive order, not by statute.
- Indian judges at the ICJ: B.N. Rau, Nagendra Singh, R.S. Pathak and Dalveer Bhandari.
Appointments:
- The collegium system rests on the Second (1993) and Third (1998) Judges cases.
- The NJAC (99th Amendment) was struck down in 2015.
Prelims, the traps:
- “Distinguished jurist” is not defined in the Constitution.
- Direct appointment from the Bar (route b) is common; route (c) is the one never used.
⚠️ Watch the trap: the President forms the opinion on a jurist’s eminence, but in practice appointments follow the collegium’s recommendation.
The Debate
For the author’s view. Constitutional courts decide questions of law that shape society for decades. Scholars bring doctrinal rigour, comparative insight and independence from the incentives of practice; excluding them wastes a talent pool the Constitution deliberately opened.
The complication. The Supreme Court is also a court of appeal with an enormous docket; experience of trials, evidence and procedure matters. Scholarship already reaches the Court through the Bar, amici curiae and citations.
The balanced verdict. An occasional appointment of an outstanding jurist to constitution benches, and far wider use of academics in law reform and international nominations, would add depth without displacing experience.
How to Think About This
Read an unused provision as a signal about institutions. When a constitutional option lies dormant for decades (the jurist route, Article 312’s new all-India services, or the Inter-State Council’s infrequent meetings), ask who controls its use and what incentives they face. The answer usually explains the silence better than the text does.
Diagram-in-Words
Takeaway Box
- Provision: Article 124(3)(c), “distinguished jurist”, never used.
- Trigger: Justice Ujjal Bhuyan’s regret that no jurist has been appointed.
- Author’s diagnosis: law academics are undervalued by judiciary and executive alike.
- Evidence: NLU chancellors are judges; no professor has chaired the Law Commission; ICJ nominees were civil servants and judges.
- Way forward: occasional jurist appointments; academics in law reform and international bodies.
Sources: Hindustan Times, Constitution of India
Source: The Missing Distinguished Jurists: Why No Law Professor Has Ever Sat on the Supreme Court — Ujiyari.com | Free UPSC & State PCS Editorial Analysis
